Why Family Law Appeals Rarely Make Sense

Several years ago, I had the privilege of meeting Justice Clarence Thomas. I had been sworn in to the Supreme Court and the Justice spent time speaking to each of the lawyers. He was truly a gentleman. That experience cemented an interest I have always had in appellate practice.

There are few more challenging experiences than the questioning and responses that occur between the judges of an appellate court and counsel. However, in family law cases, appeals are very difficult to justify. Let me explain why.

First and foremost, family law cases are expensive. The trial of a family law case can cost the marital estate tens of thousands of dollars. Once this kind of money has been spent, there may be very little left to spend on an appeal. Secondly, the very nature of a trial is that there is a winner and a loser. However, in family law disputes, this win/loss dynamic doesn’t maintain. For example, people must co-parent after a dispute over time-sharing. Ex-spouses must still attend their children’s and grandchildren’s important events. An appeal postpones closure and exposes the open wound of the divorce.

It should also be noted that in many instances it is difficult to win an appeal. If the Judge does his or her job, makes the appropriate findings and follows the law, the judgment of the court will withstand appellate scrutiny. The law affords the trial court broad discretion in its findings of fact. Thus, the appellant’s journey is often uphill.

The discussion of family law appeals reminds me that I often say to clients the following: “You have an interesting case. However, as a client, you never want an interesting case.” The discussion also reminds me of something I have mentioned previously in my writings. I am referring to Abraham Lincoln’s advice to law students. He said this:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

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